Case Note & Summary
The applicant, Shrikant Shankarrao Agnihotri, challenged an order dated 6 June 2017 passed by the Sub-Divisional Magistrate, Akola under Section 133 of the Code of Criminal Procedure, 1973. The order directed the applicant to demolish a tin shed structure occupied by him as a permissive user of the landlord, respondent No.1 (Shri Rajeshwar Sansthan), within ten days, failing which the structure would be forcibly demolished. The applicant contended that the impugned order did not comply with the mandatory requirement of Section 133 CrPC, which requires first a conditional order to be passed, followed by a final order if necessary. The court found that no conditional order had been passed, and on this ground alone, the order could not be sustained. Additionally, the court noted a fundamental error: the impugned order relied on a report from the Commissioner, Municipal Corporation, Akola dated 23 May 2017, which stated that the tin shed need not be demolished and that demolition of adjoining structures would cause danger to the applicant's structure and person. The Sub-Divisional Magistrate misinterpreted this report to suit his convenience. The court allowed the application, quashed the impugned order, and set aside the proceedings.
Headnote
A) Criminal Procedure - Section 133 CrPC - Conditional Order Requirement - The Sub-Divisional Magistrate must first pass a conditional order under Section 133(1) CrPC before issuing a final order for removal of nuisance - In the present case, no conditional order was passed, rendering the final order unsustainable - Held that the mandatory procedure under Section 133 CrPC was not followed (Paras 3-4).
B) Criminal Procedure - Section 133 CrPC - Misinterpretation of Report - The impugned order relied on a report from the Municipal Commissioner which stated that the tin shed need not be demolished and that demolition of adjoining structures would cause danger - The Magistrate misinterpreted the report to suit his convenience - Held that the order was based on a fundamental error (Para 5).
Issue of Consideration
Whether the impugned order under Section 133 CrPC is sustainable when no conditional order was passed and the report was misinterpreted
Final Decision
The application is allowed. The impugned order dated 6 June 2017 passed by the Sub-Divisional Magistrate, Akola is quashed and set aside. The proceedings under Section 133 CrPC are also set aside.
Law Points
- Section 133 CrPC requires a conditional order before final order
- mandatory procedure
- report misinterpretation
Case Details
2018 LawText (BOM) (03) 162
Criminal Application (APL) No.483 of 2017
Shri H.R. Gadhia for Applicant, Shri V.R. Deshpande for Respondent No.1, Addl. Public Prosecutor for Respondent No.2
Shrikant s/o. Shankarrao Agnihotri
Shri Rajeshwar Sansthan, Akola, State of Maharashtra, The Commissioner, Municipal Corporation, Akola
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Nature of Litigation
Criminal application challenging an order under Section 133 CrPC directing demolition of a structure
Remedy Sought
Quashing of the order dated 6 June 2017 passed by the Sub-Divisional Magistrate, Akola
Filing Reason
The impugned order did not comply with the mandatory requirement of Section 133 CrPC and misinterpreted a report
Previous Decisions
Order dated 6 June 2017 by Sub-Divisional Magistrate, Akola directing demolition
Issues
Whether the impugned order under Section 133 CrPC is sustainable when no conditional order was passed
Whether the impugned order is based on a misinterpretation of the report
Submissions/Arguments
Learned counsel for the applicant submitted that the impugned order does not comply with the mandatory requirement of Section 133 CrPC as no conditional order was passed
The report of the Commissioner, Municipal Corporation, Akola dated 23.5.2017 was misinterpreted by the Sub-Divisional Magistrate
Ratio Decidendi
Section 133 CrPC requires that a conditional order must first be passed before a final order can be made. Failure to comply with this mandatory procedure renders the final order unsustainable. Additionally, the Magistrate must not misinterpret reports to suit his convenience.
Judgment Excerpts
Section 133(1) Cr.P.C requires that first a conditional order must be passed and then the final order if the need arises has to be passed by the Executive Magistrate invested with the power under this Section.
In the present case no such conditional order has been passed and on this ground alone, the impugned order cannot be sustained in the eye of law.
The report clearly says that the structure, which is a tin shed and which is in dispute in the present case, need not be demolished because it is only a tin structure.
Procedural History
The Sub-Divisional Magistrate, Akola passed an order on 6 June 2017 under Section 133 CrPC directing the applicant to demolish a tin shed structure. The applicant challenged this order before the Bombay High Court, Nagpur Bench by filing Criminal Application (APL) No.483 of 2017. The High Court heard the matter and delivered judgment on 21 March 2018.
Acts & Sections
- Code of Criminal Procedure, 1973: 133
